Supreme Court limits presidential recess appointments

Jun. 26, 2014 - 04:35PM
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The Supreme Court has limited the president's power to make recess appointments and invalidated more than 100 National Labor Relations Board rulings in the process. (Rob Curtis/Staff)

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The president does not have the ability to make recess appointments to federal agencies while the Senate is still technically in session, according to the Supreme Court.

At issue in whether a president can appoint people during “pro-forma” Senate and House sessions, essentially where one or two lawmakers gather for a few minutes to keep the chamber in session instead of declaring recesses.

President Obama in 2012 appointed three members to the National Labor Relations Board as well as the first director of the Consumer Financial Protection bureau, Richard Cordray. Noel Canning, a Pepsi-Cola distributor, later sued the NLRB to set aside an adverse decision because, he argued, it achieved a quorum with members added by recess appointment even though Congress was technically in session.

But the Supreme Court unanimously said those sessions counted and that the president could only make recess appointments during a full congressional recess. That invalidates more than 100 decisions made by the NLRB during the period when the three members were appointed to the board using the recess power. The NLRB will have to revisit those decisions.

Since 2012, Senate Democrats have changed procedures in the chamber to reduce the confirmation threshold to a simple majority, as opposed to the 60 votes previously needed to overcome minority party resistance.

Sen. Harry Reid, D-Nevada, and Senate majority leader, said in a statement the ruling shows how important it was to reform Senate rules in order to overcome the resistance of a “small but vocal minority” in blocking up-or-down votes on presidential nominees. He said President Obama was forced to make recess appointments because those agencies had ceased to function.

“Since the November reform the Senate has been confirming qualified nominees at a steady pace and today’s ruling will have no effect on our ability to continue ensuring that qualified nominees receive an up-or-down vote,” Reid said.

But Rep. Darrell Issa, R-Calif., the chairman of the House Oversight and Government Reform Committee, said in a statement that the ruling helps preserve the checks and balances built into the constitution.

“This unanimous decision makes it clear that President Obama acted without any legitimate authority and his power grab is outside any meaningful debate about the balance of power between the executive and legislative branches,” Issa said.